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Petitioner: FATEH MUHAMMAD VS Respondent: FAQIR MUHAMMADHonorable Justice Sh. Hakim AliIjaz Ahmad Chaudhry,Muhammad Mahmood Bhatti
2005 C L C 1330
2005 C L C 1330
[Lahore]
Before Sh. Hakim Ali, J
FATEH MUHAMMAD --- Petitioner
Versus
FAQIR MUHAMMAD and others---Respondents
Writ Petition No.893 of 1993/BWP, decided on 25th April, 2005.
(a) Qanun-e-Shahadat (10 of 1984)---
----Art. 84---Comparison of signatures---Summoning of witnesses-- Power of Court---Scope---Court has ample power to examine/compare itself or to get the document compared from any expert---For such purpose; Court can direct any person to write any word or figure---Court can also issue notice/summons to marginal witnesses for their presence fn, comparison of their signatures/thumb-impressions.
(b) Civil Procedure Code (V of 1908)-----
----Ss. 32, 94 & OXVI, R.10---Qanune-e-Shahadat (10 of 1984), Art. 84---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Securing attendance of witnesses---Issuance of bailable warrants of arrest---Power of Trial Court---Application for comparison of disputed signatures was allowed and marginal witnesses were summoned by Trial Court for getting their signatures compared with those available on disputed document---On failure of witnesses to appear in response to summons, Trial Court issued bailable warrants of arrest of witnesses---Validity---Power to summon witness was not only inherent but was also allowed by O.XVI, C.P.C. to a Civil Court---If a Court was not considered to have been invested with such power, then no party could summon any person for any purpose in Court---Summoning of parties/witnesses through process provided was the basic power upon which whole fabric of trial of suit dependent---If such power was not presumed to lie with Court, whole actions of Court would become farcical---If a witness did not appear in spite of his service or refuse to appear in Court, Trial Court had got enough power to compel his attendance through modes prescribed by Civil Procedure Code, 1908-- Court was empowered under S.32, C.P.C. to cause attendance of any person in his Court to obtain his signatures for the purpose of comparison---Trial Court could issue not only notice but could also attach salary or property of such disobedient person who refused to appear and could impose fine also---Court had been granted power under the provisions of S.94, C.P.C. to pass any other interlocutory order when it considered it just and convenient in a case in a given situation, particularly where law had not provided any of its solutions--Court which was seized of the case, had to act for the smooth running and trial of case for its conclusion---No prohibition against Court to pass such order---High Court declined to interfere in bailable warrants of arrest issued by Trial Court---Petition was dismissed in circumstances.
Muhammad Saeed v. Seerat-ul-Fatima and others PLD 1978 Lah. 1459 ref.
Ijaz Ahmad Chaudhry for Petitioner.
Muhammad Mahmood Bhatti for Respondents Nos. 1 to 3.
ORDER
Two interim orders, passed by learned trial Court and Appellate Court, as far back as in the years 1992, 1993, during the pendency of a suit, are the subject-matter of this writ petition.
2. Brief facts, leading to filing of this writ petition, are that one Fateh Muhammad, had filed a suit against his brethren, namely, Faqir Muhammad, Nazir Ahmad and Bashir Ahmad, and one Umar Din, seeking declaration from learned Civil Judge, Sadiqabad with regard to Mutation No.472 dated 28-11-1974 and subsequent Mutation No.5531 dated 11-4-1981, which was based upon a registered gift deed, dated 26-1-1987, and as a consequential relief he had prayed for recovery of possession of lands measuring 57 Kanals and 5 Marlas`, situated in Mouza Kot Jangu, Tehsil Sadiqabad. The suit was contested as defendants had filed written statement controverting the material facts entered in the plaint. Issues were framed and plaintiff had led his evidence. Upon defendant's turn, an application was filed by defendants/respondents that marginal witnesses of agreement to sell (Exh.D.1) upon which Mutation No. 472 was sanctioned on 26-11-1974 in favour of Khushi Muhammad, be appointed as Referees for the case and the suit be decided upon their statements. The Court issued notices to them, who refused to make any statement as Referee. Evidence of the plaintiff was closed on 20-4-1990., After that an application was moved by the above noted defendants/ respondents for comparison of signatures of Muhammad Yousaf and Muhammad Shafi, attesting witnesses, and of Fateh Muhammad, plaintiff. Application was disallowed by learned Civil Judge on 9-9-1990 against which civil revision was filed by defendants/respondents before learned Additional District Judge, who by accepting the civil revision dated 18-7-1992 directed the learned trial Court to obtain the specimen signatures/thumb-impressions of executants as well as of the attesting witnesses and get it compared from Handwriting Expert. Learned trial Court in compliance of that order passed on 18-7-1992, by learned Additional District Judge, issued a notice to all these persons for their appearance in the Court but they did not turn up. Learned trial Court was thereafter compelled to issue bailable warrants against all these persons for 20-4-1993. Aggrieved from those orders dated 6-4-1993 for issuance of bailable warrants and 18-4-1992 for acceptance of application for comparison of signatures/thumb-impressions passed by learned Additional District Judge, this writ petition has been filed.
3. Learned counsel for the petitioner submits that learned trial Court was not empowered to issue bailable warrants of the marginal witnesses of the document of Exh.D.1 (the disputed agreement to sell) under sub-Article (2) of Article 84 of the Qanun-e-Shahadat, 1984 as the Court was not authorized or conferred with such power by the aforesaid Order. As per learned counsel, the Court may direct any person who is present in Court to write any words and figures for the purpose of comparison but cannot compel marginal witnesses and plaintiff to appear to get their thumb-impressions or their signatures for comparison.
4. On the other hand, learned counsel for the respondents submits that learned trial Court had issued bailable warrants as the aforesaid marginal witnesses had not appeared and this power was granted and available to the aforesaid learned trial Court under section 32 of the C.P.C. As the marginal witnesses had refused to enter into witness-box to give the evidence, therefore, this procedure was adopted. This writ is also not maintainable against order, dated 18-7-1992 which was passed by learned Additional District Judge because it was challenged after the passing of 9 months. No explanation as to the delay in filing of the writ petition has been given by the petitioner. He has referred to Muhammad Saeed v. Seerat-ul-Fatima and others PLD 1978 Lah. 1459.
5. After considering the arguments of learned counsel for the parties and from the perusal of record, it appears that Sub-Article (2) of Article 84 of the Qanun-e-Shahadat Order, 1984 -has empowered the Court to direct any person present in the Court to write any words and figures for the purpose of enabling the Court to compare the words or figures so written with the disputed words/figures. From the above noted provision, I find that the Court has got the power to examine/compare itself or to get the document compared from any expert, and for that purpose, it can direct any person to write any words or figures. The Court can also issue notice/summons to the marginal witnesses for their presence for comparison of their signatures/thumb-impressions. The power to summon the witness is not only inherent but is also allowed by Order "WI of the C.P.C. to a Civil Court. If a Court is not considered to have been invested with this power, then no party can summon for any purpose in the Court any person. Summoning of parties/witnesses through the process, provided is, the basic power upon which the whole fabric of the trial of the suit is dependant. In case such power is not presumed to lie with the Court, the whole actions of the Court would become farcical. Therefore, the interpretation being put to the Article is devoid of any force. If a witness does not appear in spite of his service or refuses to appear in the Court, learned trial Court has got enough power B to-compel his attendance through modes prescribed by the Code. Section 32 of the C.P.C. has empowered the Court to cause the attendance of any person in his Court to obtain his signatures for the purpose of comparison. Trial Court cannot issue notice but can also attach salary or property of such disobedient person who refuses to appear and can impose fine also. There is yet another provision of section 94 of the C.P.C. which has granted powers to the Court to pass any other interlocutory order when it considers just and convenient in a case in a given situation, particularly where law has not provided any of its solution. The Court, which is seized of the case, has to act for the smooth running and trial of a case for its conclusion. There is no prohibition to the Court, to pass such an order. Therefore, I do not see any reason to interfere into this order. So, the writ petition is dismissed with no order as to costs.
M.H./F-94/L Petition dismissed